United States District Court, D. Montana, Missoula Division
BREANNE WALDEN, DANIELLE DESCHENES AZURE, JESSICA BLACKWEASEL, SABRINA REMUS COYNE, BRITTANY DEAN, JENNIFER DEMENT, DANIELLE DUNCAN, JACKIE GREAVU, BETH HAYES, JANA HEILIG, KEALLIE LIETZ, JACKIE MULLENNAX, SARA ONSAGER, ANNA RADFORD, BARBARA SLOAN, MOLLY STILSON, and KYRA TILSON, Individually and as Assignees of DB&D, LLC d/b/a DAHL'S COLLEGE OF BEAUTY, Plaintiffs,
MARYLAND CASUALTY COMPANY, and DOES 1-5, inclusive, Defendants.
L. Christensen, United States District Court Chief Judge
the Court is Defendant's Motion for Summary Judgment
(Doc. 78.) For the reasons explained below, the Court denies
and Factual Background
October 7, 2015, the Court granted Defendant Maryland
Casualty Company's ("Maryland") motion for
summary judgment, and denied all other pending motions as
moot. The Ninth Circuit reversed and mandate was issued on
July 7, 2017. The parties submitted a joint status report on
August 18, 2017, pursuant to the Court's request,
outlining the motions that are now ripe and need to be
resolved. Defendant's July 31, 2015 Motion for Summary
Judgment is one of the ripe and pending motions.
the parties are familiar with the facts of this case they
will only be recited as necessary to understand the
is entitled to summary judgment if it can demonstrate that
"there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). Summary judgment is warranted where the
documentary evidence produced by the parties permits only one
conclusion. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251 (1986). Only disputes over facts that might
affect the outcome of the lawsuit will preclude entry of
summary judgment; factual disputes that are irrelevant or
unnecessary to the outcome are not considered. Id.
at 248. In ruling on a motion for summary judgment, a court
must view the evidence "in the light most favorable to
the opposing part." Tolan v. Cotton, 134 S.Ct.
1861, 1866 (2014) (quoting Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157 (1970)). "[T]he evidence of
the nonmovant is to be believed, and all justifiable
inferences are to be drawn in his favor." Id.
at 1863 (quoting Anderson, 477 U.S. at 255).
"If the moving party has the burden of proof at trial,
that party must carry its initial burden at summary judgment
by presenting affirmative evidence as to the essential
elements of its case such that no reasonable jury could find
for the non-moving party." Alliance for the Wild
Rockies v. United States Dept. of Agric, 938 F.Supp.2d
1034, 1039 (D. Mont. 2013), rev'd in part on other
grounds, 772 F.3d 592 (9th Cir. 2014).
argues that summary judgment is proper because Plaintiffs
Brittany Houston ("Houston") and Anna Radford
("Radford") have failed to prove they suffered
physical manifestations from their emotional distress, which
is a prerequisite to finding coverage under Maryland's
insurance policy. Since Maryland filed its motion, Plaintiffs
have supplemented the record with affidavits claiming
physical manifestations of their emotional distress. Maryland
argues the new statements are sham affidavits and the Court
should strike them and award summary judgment to Maryland.
argue that summary judgment is not appropriate because the
affidavits raise an issue of material fact regarding whether
they suffered physical manifestations of emotional distress.
Additionally, their testimony is supplemented with the
affidavit of Katy Nicholls ("Nicholls"), a LCSW who
diagnosed both Plaintiffs and concluded that they both
suffered from physical manifestations due to their emotional
to reaching the merits of Maryland's summary judgment
motion, the Court must first address whether the affidavits
are a "sham."
general rule in the Ninth Circuit is that a party cannot
create an issue of material fact to preclude summary judgment
by raising additional facts that are inconsistent to their
prior sworn testimony. Kennedy v. Allied Mut. Ins.
Co., 952 F.2d 262, 266 (9th Cir. 1991). "If a party
who has been examined at length on deposition could raise an
issue of fact simply by submitting an affidavit contradicting
his own prior testimony, this would greatly diminish the
utility of summary judgment as a procedure for screening out
sham issues of fact." Id. (quoting Perma
Research and Dev. Co. v. Singer Co., 410 F.2d 572, 578
(2d Cir. 1969)).
this rule "should be applied with caution." Van
Asdale v. International Game Tech.,577 F.3d 989, 998
(9th Cir. 2009). The "sham affidavit" rule is
contrary to the court's general role in deciding a
summary judgment motion, which is not to make
"credibility determinations or weigh conflicting
evidence." Id. Thus, the Ninth Circuit has
limited the rule to cases where (1) the affidavit is
"actually a sham" and (2) the inconsistencies are
"clear and unambiguous." Id. Courts
analyzing the rule look to whether subsequent testimony
"flatly contradicts" previous testimony, or whether
the inconsistencies are attributable to confusion. Van
Asdale, 577 F.3d at 999; Kennedy, 952 F.2d at
267. "The nonmoving party is not precluded from
elaborating upon, ...